VERDICT CHALLENGED

Dominion, Volume 29, Issue 228, 23 June 1936, Page 13

VERDICT CHALLENGED

Jury’s Award of £l7lO To Linesman

IMPORTANT ISSUES ARGUED Issues of considerable importance regarding contributory negligence in accident cases were argued before the Full Court at Wellington yesterday when a motion for judgment or, alternatively, a new trial was submitted. The motion was lodged on behalf of Ling Sing, general merchant, of Greytown, who was defendant in a successful action for substantial damages brought by Thomas Walton Robertson, linesman, of Wellington. The case will proceed to-morrow.

The court comprised the Acting-Chief Justice (Mr. Justice Reed), Mr. Justice Blair, Mr. Justice Smith, Mr. Justice Johnston, Mr. Justice Fair and Mr. Justice Northcroft.

Mr. E. Parry represented Ling Sing, and Mr. W. E. Leicester appeared for Robertson.

The circumstances were that Robertson was motor-cycling to Carterton over the Rimutaka Hill at 6 a.m. on February 18, 1935, and at the same time Ling Sing was driving a motor-truck down the bill in an opposite direction. Robertson al-leged-Ling Sing so negligently and recklessly controlled the truck that it collided with his motor-cycle. As a result he was eeverly injured and was in hospital from February to October, 1935, and from November, 1935, to March, 1936, and was still on crutches. He claimed £1750 general damages and £384 special damages.

Robertson’s allegations of negligence against Ling Sing were: (1) Driving on the incorrect side; (2) driving at a speed excessive in the circumstances; (3) failing to keep a proper look-out; (4) failing to sound a horn; (5) failing to control adequately the motor-truck; (6) that he was an incompetent driver. ' Ling Sing alleged the collision was due entirely to the negligent and unskilful manner in which Robertson managed his motor-cycle. He alleged specifically against Robertson: (1) Riding too close to the centre line of the road; (2) riding at a speed excessive in the circumstances; (3) failing to keep any or, alternatively, a sufficient look-out; (4) failing to give any or, alternatively, sufficient warning of approach; (5) failing to keep his motor-cycle under proper control; (6) failing to stop before striking the truck or to swerve so as to avoid it. It was alternatively submitted that if Ling Sing were negligent, Robertson was contributorily negligent and not entitled to recover. i

At the first trial before Mr. Justice Smith the jury was unable to agree and a new trial was ordered. At the new trial Mr. Justice Blair put these issues to the jury: (1) Was Ling Ling negligent and, if so, in what respects?—Answer, on a 9 to 3 majority, yesj he was on his incorrect side of the road at the time of the impact, caused by swinging round the bend. (2) If the answer to question one is yes, then was Robertson negligent, and, if so, in what respects?—Answer, by a 9 to 3 majority, yes, he was riding too near the crown of the road and not keepiAg a clear look-out. (3) If the answers to questions one and two are yes, then whose negligence was the real cause, or were both so guilty of negligence causing the collision that it was not possible to separate them? —Answer, Ling Sing’s, by a 9 to 3 majority. Special damages £384 and general damages £1326 were awarded Robertson on a 10 to 2 majority. Notice of motion for judgment or, alternatively, for a new trial, was. filed by Ling Sing’s counsel on the ground that there was no evidence to support the jury’s finding upon the third issue submitted to it or, alternatively, upon the ground that the finding in answer to the third issue was against the weight o£ ivideucc. The whole matter of the third issue involved consideration of a question of Jaw which had been before the court on H number of occasions, said Mr. Barry. In this case the question arose whether the form of the issues'left to the jury, having regard to the circumstances, did not amount to a misdirection. If Robertson had intended to rely on effective cause or last opportunity, then he should have specifically pleaded that if he was himself negligent, then his negligence was not the real cause of the accident or, alternatively, that Ling Sing had the last opportunity of avoiding the accident. It the answers to issues one and two were accepted then judgment should go to Ling Sing and, alternatively, leaving the third issue in the form presented, it constituted a misdirection as to what the law really was, and a new trial should be ordered on this ground. Any issue in the form of the third would mislead the jury as to issues one and two, said Mr. Parry. Mr. Leicester submitted that where contributory negligence was an issue the law of the country regarding issues could be summarised in these five propositions: (1) Subject to a proper direction it is competent to leave to the jury the general issue whether it finds for plaintiff or defendant; (2) where the jury is asked to find whether the plaintiff as well as defendant was negligent, some third issue must be put; (3) where the tame factor, showing a separation of time, factor and circumstance, is evident, the proper third issue is one of third opportunity; (4) where some act of initial negligence becomes operative as final negligence the last opportunity issue should De put; (4>) where the time factor is not present the fast issue should be directed to legal responsibility and should be in the form of the issue put in the present case. Mr. Justice NArthcroft: That is not a finding in fact but in law you are suggesting. ’ Mr. Leicester: My proposition is that the real cause Issue is one entirely flif ferent from the last opportunity issue. Mr. Justice Blair: Where there is a clear case of last opportunity there should be another issue of effective cause? — Certainly not. In regard to his first proposition Mr. Leicester said the reason what he submitted was frequently not done was not due to the law but to a proper fear that a jury might devote its mind not to legal but irrelevant considerations. This simple issue was offered defendant and declined. Proposition five was that around which the case centred. In the course of his address Air. Leicester said that the real cause of the ac cideut, from a common-sense viewpoint, was Ling Sing’s swinging his truck on to the incorrect ■side. Otherwise the ac cident could not have occurred as Robertson, ( though near the centre of the road, was on his correct side. Mr. Parry said it seemed common ground that it was not a case where the question of last opnortunity could arise. Apart from the third issue put to the jury, its finding on the second issue did not debar Robertson from succeeding unless his negligence were truly contributory, proceeded Air. Leicester. ( Argument will be heard to-morrow.